Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia & Anor

[2011] HCATrans 322

[2011] HCATrans 322

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A7 of 2011

B e t w e e n -

PUBLIC SERVICE ASSOCIATION OF SOUTH AUSTRALIA INCORPORATED

Applicant

and

INDUSTRIAL RELATIONS COMMISSION OF SOUTH AUSTRALIA

First Respondent

CHIEF EXECUTIVE, DEPARTMENT FOR PREMIER AND CABINET

Second Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 29 NOVEMBER 2011, AT 10.15 AM

Copyright in the High Court of Australia

MR P.A. HEYWOOD-SMITH, QC:   May it please the Court, I appear with MR P.N. MOLONEY for the applicant.  (instructed by Moloney and Partners)

MR. M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MR. D.F. O’LEARY, for the second respondent and for the Attorney‑General for South Australia intervening.  There is a submitting appearance for the first respondent to be found in the application book at page 48.  (instructed by Crown Solicitor (SA))

MR. S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with MR G.R. KENNETT, SC and MR C.D. BLEBY for the Attorney‑General of the Commonwealth intervening under section 78A of the Judiciary Act.  (instructed by Australian Government Solicitor)

MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friend, MR G. J. D. DEL VILLAR, for the Attorney‑General for the State of Queensland.  (instructed by Crown Law (Qld))

MR G.L. SEALY, SC, Solicitor‑General for the State of Tasmania:   May it please the Court, I appear on behalf of the Attorney‑General of Tasmania with my learned friend, MR S.D. GATES, for the Attorney‑General intervening.  (instructed by Crown Solicitor (Tas))

MR S.G.E. McLEISH, SC, Solicitor‑General for the State of Victoria:   If it please the Court, I appear with my learned friend, MR P.R.D. GRAY, SC, for the Attorney‑General for Victoria intervening.  (instructed by Victorian Government Solicitor)

MR R.M. MITCHELL, SC, Acting Solicitor‑General for the State of Western Australia:   May it please the Court, with my learned friend, MR A.K. SHARPE, I appear for the Attorney‑General for Western Australia intervening in support of the second respondent.  (instructed by State Solicitor (WA))

FRENCH CJ:   Thank you.  Yes, Mr Heywood‑Smith.

MR HEYWOOD-SMITH:   If the Court pleases.  I thought that I might commence by saying something about the further submission that was filed yesterday by the State of South Australia in respect of the special leave.  I then propose to say something further about the factual background of the matter and then speak to the outline of propositions.  It is the applicant’s submission to the Court that this is a relatively short point and can be determined relatively easily.

On the issue of the special leave, the Court will have the submission of South Australia.  I think attached to the applicant’s outline of submissions or annotated application is a chronology.  The background of this matter is that on 14 January 2010 the Public Service Association entered into an enterprise agreement under the Fair Work Act with the Chief Executive of the Department of Premier and Cabinet on behalf of all public servants in South Australia and that enterprise agreement had a life due to expire on 30 June 2012. 

On 16 September 2010, the Treasurer in his budget speech gave notice that he proposed to amend the Public Sector Act in a number of ways.  Firstly, to reduce leave loading entitlements and, secondly, to reduce long service leave entitlements and both of those intimations were or would constitute unilateral variations of the enterprise agreement.  He also indicated that it was his intention to implement ‑ ‑ ‑

FRENCH CJ:   Mr Heywood-Smith, sorry to interrupt you, but I think what we might do in relation to the special leave submission which has been filed yesterday by Solicitor-General for South Australia, we will hear from him in due course and his argument and hear from you about it in reply, so I think that perhaps you can move straight on to ‑ ‑ ‑

MR HEYWOOD-SMITH:   If the Court pleases.  So the factual background is relatively non‑contentious in this matter.  The disputes were notified to the Commission.  The matter came on before Commissioner McMahon on 30 October 2010.  He delivered a statement on 15 October declining to accept jurisdiction or indicating that there was no jurisdiction.

FRENCH CJ: Can I just ask about the way in which the matter came to the Commission. I think, according to section 194 of the Fair Work Act:

Proceedings before the Commission are commenced by an application – 

are we to take it that the letters from the PSA to the Commission fall within the category of an application for the purposes of 194?

MR HEYWOOD-SMITH:    That is so.

FRENCH CJ:   Then it went to a voluntary conference.

MR HEYWOOD-SMITH:   A voluntary conference under section 200.

FRENCH CJ:   The record does not show it but there is a reference in Chief Justice Doyle’s judgment, too, then moving to a compulsory conference.

MR HEYWOOD-SMITH:   What happened was that Commissioner McMahon handed down the statement on 15 October, which appears at page 1 of the application book, but in order to appeal that there has to be an order - the statement appears halfway down page 1 at line 19.  That was issued on 15 October as is referred to in item 2 immediately above it.  The parties then had to approach the Commission and say we cannot appeal your ruling under section ‑ ‑ ‑

FRENCH CJ:   The statement had no statutory significance because it is just in the context of a voluntary conference.

MR HEYWOOD-SMITH:  That is right and so what the Commissioner was asked to do was to call a compulsory conference, refer the matter to arbitration ‑ ‑ ‑

FRENCH CJ:   Refer the matter to himself in this case.

MR HEYWOOD-SMITH:    To himself and make a determination and that determination is the trigger for a right of appeal.

FRENCH CJ:   Yes.  Now, I suppose the question is the determination to be made under 202 was based on the view that there was no relevant industrial dispute.

MR HEYWOOD-SMITH:   That is so.

FRENCH CJ:   That would be a matter of jurisdictional fact, would it not?

MR HEYWOOD-SMITH:   That is the applicant’s position, that the existence of an industrial dispute is a jurisdictional fact, much the same way as an interstate dispute under the old Commonwealth Conciliation Act was a constitutional fact, and it was a preliminary to any embarking on the exercise of jurisdiction and so it is the applicant’s case that when erring in respect of the existence of an industrial dispute that there was a clear jurisdictional error.

FRENCH CJ:   Now, in determining the question of jurisdictional fact, is the Commission acting within jurisdiction to do that thing?

MR HEYWOOD-SMITH:   Our submission is no.  That decision must be one that is capable of being reviewed by ‑ ‑ ‑

FRENCH CJ:   No, that really was not the question.  The Commission has authority, does it not, to determine the question of jurisdictional fact upon which its substantive jurisdiction depends?

MR HEYWOOD-SMITH:   Yes, it has to turn its mind to that and address that.

FRENCH CJ:   It cannot just do it as a kind of extra‑statutory exercise.  There must be authority to do that, must there not?

MR HEYWOOD-SMITH:   Yes, we would accept that.

GUMMOW J:   Is this section 26?  Which paragraphs in section 26?  Paragraphs (c) and (d) is it?

MR HEYWOOD-SMITH: Section 26(c) and (d) – and (b) makes an award determining the matter.

GUMMOW J:   The definition of “industrial dispute” ‑ ‑ ‑

MR HEYWOOD-SMITH:   Section 4.

GUMMOW J:   ‑ ‑ ‑ is linked to the definition of “industrial matter”.

MR HEYWOOD-SMITH:   That is right.  Now, here, the applicant says that the government had given notice of its intention immediately because a bill was presented on that day in September to vary the Public Sector Act in two specific respects – in respect of leave loading and in respect of long service leave – but it also, in the speech, gave notice of an intention to introduce voluntary separation packages, as is noted by the Chief Justice in paragraph 21 of his reasons, page 35 of the application book.  About the sixth line of paragraph 21, the Treasurer gave notice:

to the effect that voluntary separation packages would be offered to Public Sector employees over the coming 12 months -

bearing in mind that the life of this enterprise agreement was until 30 June 2012 and if there was insufficient numbers accepting those packages that it would review the no‑forced redundancies policy which was a policy which was a term of the enterprise agreement so that there was – the applicant indicated - the position was that there was an immediate impact so far as its members were concerned that they were immediately faced with the pressure of knowing that if they, perhaps, thought they might be in the zone if they did not accept a voluntary separation package that after 12 months they might be removed without particular benefits.

So what the applicants said was – we have a clear industrial dispute that we bring to the Commission.  At that stage, it was inchoate in a sense that the Bill had not been passed.  It was not passed until November 2010 and it did not have effect – it was not to have effect immediately – long service leave provisions were not to be altered until 1 July 2011 – altered in the sense of instead of accruing 15 days a year, it only accrued nine days a year and the leave‑loading provisions were to come in per time of proclamation.

GUMMOW J:   We are concerned with jurisdiction at two levels, are we not, the jurisdiction of the Commission but immediately with the jurisdiction of the Supreme Court?

MR HEYWOOD-SMITH:   Yes.

GUMMOW J:   The general jurisdiction, the inherited jurisdiction is in section 16 or 17, is it, of the Supreme Court Act 1935?  That gives them Queen’s Bench jurisdiction, does it not?

MR HEYWOOD-SMITH:   That is so.

GUMMOW J:   That is what Chief Justice Bray was talking about in the earlier case, I think.

MR HEYWOOD-SMITH:   I am not sure that he specifically ‑ ‑ ‑

GUMMOW J:  No, he assumed everyone reading it would know it, I suppose. Then the question is one of the extent of the carve‑out by section 206, is it not, of the Fair Work Act?

MR HEYWOOD-SMITH: Section 206 of the Fair Work Act.  It is a privative section which limits the view by the Supreme Court of decisions of that Commission.

CRENNAN J:   Am I right that the relief sought, in respect of the second dispute anyway, was a direction to the respondent to withdraw the bill?

MR HEYWOOD-SMITH:   No, with respect.  The relief sought is at large.  An industrial dispute, of course, can be settled in various ways, one of which might be persuading the Government that the course that they had adopted was not a fruitful course and they might like to consider that and, indeed, that is what has happened.  So far as the leave loading matter is concerned, that has been repealed, but it does not necessarily have to be that.

FRENCH CJ:   We are talking about the relief sought in the Supreme Court, are we not?

MR HEYWOOD-SMITH:   The relief sought in the Supreme Court.

FRENCH CJ:   That was judicial review under rules 199 and 200?

MR HEYWOOD-SMITH:   Yes, seeking, in effect, certiorari.

GUMMOW J:   Mandamus.

HAYNE J:   Mandamus, I would have thought.

MR HEYWOOD-SMITH:   It was to quash the appeal ‑ ‑ ‑

HAYNE J:   It was to require the Commission to hear, was it not?

FRENCH CJ:   Your complaint was they would not engage in the process.

MR HEYWOOD-SMITH:   Yes, but I think that it can be, with respect, expressed in the alternative way, that the Full Commission had erred ‑ ‑ ‑

HAYNE J:   But you can get mandamus without certiorari.

MR HEYWOOD-SMITH:   Certainly.

HAYNE J:   Mandamus to hear and determine without the issue of certiorari is well recognised, I think, as available and your central complaint was that the Commission was seized of what you said was an industrial dispute and should dispose of it.

MR HEYWOOD-SMITH:   That is so.

GUMMOW J:   I do not see why in the various intervening submissions there is almost an obsession with certiorari - anyhow.

MR HEYWOOD-SMITH:   In any event, that is the background to the matter and ‑ ‑ ‑

GUMMOW J:   In particular, the Privy Council’s decision in Willan’s Case which was a certiorari case.

FRENCH CJ:   The question is, is it not, whether or not the Commission acted in excess of jurisdiction or with want of jurisdiction if it determined a jurisdictional fact incorrectly?  In other words, the question is whether error in the determination of a jurisdictional fact is an excess of the jurisdiction to determine a question of jurisdictional fact being an ancillary jurisdiction to the substantive jurisdiction which you seek to invoke.

MR HEYWOOD-SMITH:   It can be expressed in that way and we would be content that it would be expressed in that way.

GUMMOW J:   You would not get to Kirk then, would you – you would not need to get to Kirk?

MR HEYWOOD-SMITH:   Would not need to get to Kirk, that is right.

HAYNE J:   Is it not the route for the grant of mandamus where there has been a purported determination including, for example, refusal to exercise jurisdiction, is it not the route of mandamus that the tribunal or body in question has acted in excess or want of its jurisdiction by so determining?

MR HEYWOOD-SMITH:   We are content with that description of the exercise as well.

GUMMOW J:   You then get to the question of the extent to which the first PSA Case in this Court stands in the path of that proceeding – that method of proceeding.

MR HEYWOOD-SMITH:   That is right and we accept that the dicta in the first PSA Case would suggest that a refusal to engage the jurisdiction or even a wrongful refusal does not constitute excess or want of jurisdiction.  We acknowledge that dicta.

GUMMOW J:   What was the actual decision – it was rather different, was it not?

MR HEYWOOD-SMITH:   The actual decision was that the Full Commission in addressing the question of leave to appeal from the Registrar erred in its construction of the task which it had to do.  It erred in characterising the Registrar’s exercise of power as a discretionary one, an unfettered discretion and, I think, the majority in the PSA Case were of the view that that approach to the leave issue constituted an excess – acting in excess of jurisdiction.  But I have to say that the – it is a difficult case to read.  It is difficult to extract a clear ratio but we are bound to accept that dicta are adverse to the position that is taken here today.  But, having said that, we would invite the Court to note that the decision was argued five years before Kable, five years before the concept of the defining characteristics of a court was really focused on by this Court and, in our submission, this is an appropriate case for this Court to revisit PSA v FCU and we would ‑ ‑ ‑

FRENCH CJ:   The question is whether PSA engages with this problem.  If you look at what Justice Brennan says at page 142, he looks at two situations, one in which there is no jurisdiction to exercise and the second in which there is jurisdiction but no exercise of it.  He says it is the second that cannot by any account of a construction be fitted within excess of want of jurisdiction.  The question is whether in determining a matter of jurisdictional fact, the Commission was exercising a jurisdiction which it had to decide that question.  If it was, then it does not fall within the category of jurisdiction but no exercise of it.  So the question is whether it can be characterised in that way or not.

MR HEYWOOD-SMITH:   It might be capable of being characterised in that way.  We say that of course we do not need to get to Kirk if the ‑ ‑ ‑

FRENCH CJ:   This is not a question of Kirk.

MR HEYWOOD-SMITH:   No, that is right.  If the construction advanced by former Chief Justice Bray is adopted, then we do not get to Kirk.

HAYNE J:   But whatever may be the position in the case of the neglectful or indolent Tribunal that simply does nothing, in the case of the Tribunal that enters upon the question and forms a wrong view about its jurisdiction, as was said in R v War Pensions Entitlement Appeal Tribunal; Ex Parte Bott 50 CLR at 242:

If the person under the duty –

here the Tribunal –

professes to perform it –

it professes to perform it by determining there is no industrial dispute –

but what he actually does amounts in law to no performance because he has misconceived his duty –

you say that is this case, or you wanted to say in the Supreme Court that was this case –

or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ –

et cetera.

MR HEYWOOD-SMITH:   That was essentially the argument put to the Chief Justice and unsuccessfully.  I would like to refer the Court, if I might, to the outline of propositions that the applicant has produced.  I do not think I need to comment upon paragraph 1 and, as I have indicated, we say that the question of the existence of an industrial dispute is a clear jurisdictional fact.  The Full Court, we say, approached the matter on the basis of the former PSA Case and considered that it was bound to apply that.  We are not seeking to raise that issue.  Paragraph 3, this must be a case of jurisdictional error and, in our submission, paragraph 4, it is subject to correction by the Supreme Court and any legislation removing that capacity to correct must be beyond power, and we say that Kirk is as simply stated as that.

We re‑state the basis of this Court’s approach in Kirk and we acknowledge the position that if the Fair Work Act (SA) did create, in a sense, a discretionary jurisdiction or a situation whereby the Commission could pick and choose which cases it heard, then the decision not to entertain a particular matter might be a decision within jurisdiction. But, in our submission, that suggestion is clearly untenable when one has regard to the Act, and if I could just invite the Court to have regard to these provisions of the Act. I think that the Court was provided with the whole Act by my learned friend appearing for the State of South Australia.

I would simply invite the Court to consider section 3, the “Objects of Act”, including in particular 3(1)(g), (h) and (i).  The object is “to encourage prevention and settlement of industrial disputes”; the jurisdiction in section 26(b), (c) and (d) which the Court has already been taken to; section 82 extending the “Commission’s jurisdiction to act in disputes under an enterprise agreement”, and this was, of course, a dispute under an enterprise agreement.

FRENCH CJ: Before you skip over the interpretation provisions, I think the word “determination” is of some significance, is it not, in relation to section 206?

MR HEYWOOD-SMITH:    Yes.

FRENCH CJ:   That picks up a definition of “decision”, which “includes a refusal or failure to make a decision”.

MR HEYWOOD-SMITH:    Section 155 indicates the nature of the relief that both Court and Commission can grant, in particular, at section 155(3):

Any relief granted by the Court or the Commission must be consistent with the provisions of the Act –

Sections 156 to 164, the evidentiary powers given to the Commission essentially to conduct proceedings in a quasi‑judiciary way, powers to compel attendance and so on.  Sections 165 to 175 of the “Miscellaneous procedural rules” which again very much, we say, give the character of the Commission or give it such character.  Section 168 is of significance, “Power to desist from hearing”:

The Court or the Commission may desist from hearing proceedings if – 

(a)the proceedings are frivolous or vexatious; or

(b)further hearing of the proceedings is not, in the opinion of the Court or the Commission, in the public interest.

Those matters, we would suggest, delimit the occasions when the Commission would desist from hearing and, in our submission, are counter to the suggestion of the position being advanced by some of the States that there is no duty in the Commission to address this dispute.  Sections 176 and 177, punishment for contempt.  Section 192, a section that is directed to conciliate. 

FRENCH CJ:   What you have just been looking at are provisions common to both the Court and the Commission.  Now we are going to specific provisions relating to the Commission.

MR HEYWOOD-SMITH:   That is so, if the Court please – 192, the power to conciliate; 194, how proceedings are commenced; 193, Commission’s determinations must be consistent with the objects of this Act.  In our submission, any determination not to hear a matter would be inconsistent with an object calling for the Commission to settle industrial disputes.

FRENCH CJ:   This is not the question of the exercise of a discretion, is it?  This is the Commission deciding that it simply did not have authority to proceed.

MR HEYWOOD-SMITH:   That is so.

FRENCH CJ:   Because the relevant head of jurisdiction under 26 did not exist.

MR HEYWOOD-SMITH:   That is so.  That is so.  This was not a case ‑ ‑ ‑

FRENCH CJ:   So, that does not have much to do with the object, does it?

MR HEYWOOD-SMITH:   No.  This was certainly not a case of the Commission recognising or accepting that it had jurisdiction and then saying well, we are just not going to exercise it.  This was a case of the Commission erring in the decision as to the existence of an industrial dispute.  So the section 200 I have already taken the Court to and the compulsory conference going through the various stages by which parties are encouraged to seek agreement; section 202, the referral to the Commission for determination, and so on. 

So, it is the applicant’s submission that the arguments advanced by various of the States that in some way this Act should be construed through section 206 to create a situation whereby there is no conflict with the privative clause by creating a circumstance where it is perceived that the Commission has no duty to address a dispute brought to it and so any declining by the Commission to hear the dispute does not constitute a jurisdictional error is, in our submission, untenable.

FRENCH CJ:   Just coming back to 202 for a minute, how do you characterise the matter which was referred for determination under 202(2), in this case?

MR HEYWOOD-SMITH:   Well, in this case, it was as fundamental as you can get in terms of industrial matters.

FRENCH CJ:   What was it?

MR HEYWOOD-SMITH:   It was the terms and conditions of employments of public servants in South Australia as expressed in the enterprise agreement and as sought to be varied unilaterally.  The definition of “industrial matter”, of course, includes:

the wages, allowances or remuneration of employees -

These matters went directly to that, insofar as leave loading and long service leave accrual was concerned.

FRENCH CJ:   Well, if one goes to page 1 of the application book there is this reference to a statement regarding “the above matters”.  That is the matters of dispute notified, I presume, the subject of the application.  Now, we do not have that statement actually in the ‑ ‑ ‑

MR HEYWOOD-SMITH:   Yes, yes.

FRENCH CJ:   Where is the statement itself?

MR HEYWOOD-SMITH:   The statement is reproduced immediately below paragraph 2.

FRENCH CJ:   Sorry.

MR HEYWOOD-SMITH:   On page 1 where it says “Statement” from there until the end of page 3 is the statement in precise terms.

FRENCH CJ:   That is the 202 statement, is it not?  I am sorry “I am incorporating that statement into this order”.

MR HEYWOOD-SMITH:   It incorporates it into the order.

FRENCH CJ:   Yes, all right.

MR HEYWOOD-SMITH:   So, the order is order 1.

FRENCH CJ:   So the matter referred for determination under 202 was the whole of the dispute or the question whether the Commission had jurisdiction?

MR HEYWOOD-SMITH:   The whole of the dispute.

FRENCH CJ:   Including the question whether the Commission had jurisdiction.

MR HEYWOOD-SMITH:   Including that.  The Court might note on page 2 the effective determination at line 25, the position of the Department of Premier and Cabinet, no power to intervene because the Chief Executive, as the employer, had not sought to breach any of the employment conditions.  All that has happened is that there had been a statement from the government who is not the employer.  Then on the top of page 3:

currently there is no threatened breach of the agreement by the employer . . . 

The Commission is therefore of the preliminary view that it does not currently have any jurisdiction –

That decision is repeated at line 22 on page 3 in respect of the recreational leave loading and long service leave dispute and when the matter came before the Full Commission, at page 10 of the application book, we have, line 23, the then Mr Stanley QC:

submitted that the Chief Executive is the statutorily nominated employer of the relevant public sector employees and is not an agent of Government.

Paragraph 24:

We accept Mr Stanley’s submissions about the status of the Chief Executive.

Paragraph 28:

We uphold the decision of the Commissioner that there is no industrial dispute about an industrial matter and that the Commission does not have jurisdiction ‑ ‑ ‑

BELL J:   Just taking you back, if I may, to page 1 of the application book, where the Commissioner declines to make the orders that are sought in paragraph 1, those were orders sought in each of the two disputes that were notified in separate letters?

MR HEYWOOD-SMITH:   That is so.

BELL J:   The terms of the orders sought?

MR HEYWOOD-SMITH:   In fact there were no precise orders sought.  What was sought was the intervention of the Commission to settle a dispute.  Now, under section 155 of the Act the Commission can make any orders that it considers appropriate.  I think all that has happened here is that the Commissioner is indicating that he declines to make any orders or any determination in respect of that notified dispute.

BELL J:   Thank you.

MR HEYWOOD-SMITH:   If the Court pleases, unless there are any other matters that the Court wishes me to address at this stage.

FRENCH CJ:   Thank you, Mr Heywood‑Smith.  Yes, Mr Solicitor.

MR HINTON:   If the Court pleases.  I should start by making clear what we make clear in our written submissions and that is that before the Full Court the second respondent conceded jurisdiction.  That was not accepted by the Chief Justice.  In this Court the Attorney‑General acts as contradictor so that this Court has the benefit of a contradictor acknowledging the concession made in the court below by the Executive Government for the State of South Australia.

GUMMOW J:   Where do we see the concession?

MR HINTON:  You will see it recorded in the judgment of the Chief Justice at application book page 29, paragraph 5, commencing at the bottom. First there is the reference to Mr Heywood-Smith, my learned friend, and then there is the reference to Mr Stanley who appeared for the second respondent. In our submission, a wrongful refusal to exercise jurisdiction is not a determination in excess or for want of jurisdiction within the meaning of section 206. It is a jurisdictional error. The question is the validity of the carve‑out.

HAYNE J:   I am sorry, you say it is a jurisdictional error but neither excess nor want.

MR HINTON:   Yes, your Honour.  I will endeavour to develop that through primarily an analysis of the Willan judgment.  Yes, we do focus upon certiorari, your Honour Justice Gummow, your Honour Justice Hayne.

GUMMOW J:   If you do that you deliver yourself into the area of validity, do you not?  You deliver yourself into Kirk? 

MR HINTON:   Yes, your Honour.

GUMMOW J:   It has been said for a hundred years in this Court that if there is a reasonable construction which does not throw you into the field of validity questions that is what is to be done.  At the time the PSA Case was decided, Kirk had not been decided, so the importance of that principle was insufficiently appreciated.  You will not solve that by talking about what the Privy Council said in Willan’s Case about certiorari, it seems to me.

MR HINTON:   I will not solve the construction point, agreed.  With respect to the construction point, we rely upon what this Court said – agreed in 1991, before Kirk, in the Public Service Association v Federated Clerks’ Union Case.  We rely upon the distinction drawn in that case between what amounts to an excess, an act in excess of, or for want of jurisdiction and a wrongful refusal.

GUMMOW J:   As a matter of ordinary understanding, what would be the sense of a carve‑out of prohibition but not mandamus – if you are carving out the Supreme Court jurisdiction?  Why would you construe a section that carved out prohibition – sorry, that did not treat alike, put it that way, prohibition and mandamus?  What is the rationale for it apart from a certain amount of linguistic thought chopping which, to some minds, draws administrative lawyers into disrepute?

MR HINTON:   The rationale was one of utility.  Speed in the resolution of industrial disputes, a matter of resolving a vast range of industrial disputes between employee and employer.

GUMMOW J:   Your submission means it will not be resolved because the Commission says there is not an industrial dispute, gets it wrong and nothing can be done about it.  How does that advance the Act?  

MR HINTON: My submission is that there is that degree of finality, it is resolved and we get to that point where, when we come to the validity question of whether or not, your Honour the Chief Justice’s question, the power to determine the jurisdictional fact was within power and our submission is that it was. It is within power to make the sort of error that was made here. It is within power to determine that there was not an industrial dispute within the meaning of section 4 and section 26(c) or an industrial matter within the meaning of section 26(d) in section 4 and, therefore, refuse to exercise jurisdiction.

KIEFEL J:   But the industrial dispute is the condition upon which this jurisdiction depends.

MR HINTON:   It is, your Honour.

KIEFEL J:   So you are not within jurisdiction, are you?

MR HINTON:   But the difference is that it is – you are within jurisdiction, with respect, because it is a question committed to you to decide.  Not necessarily finally ‑ ‑ ‑

KIEFEL J:   Before you can enter upon jurisdiction to determine the matter.

MR HINTON:   As part of determining the matter, not necessarily before, but as part of – still a question committed to the Industrial Commission to decide under section 26, and it falls within – and I will bring your Honours to it when we come to the question of the application of Willan – it falls within the third category of the three categories of error that Sir James Colville points to, and it is the third category that in his Lordship’s opinion is one that is not a manifest defect in jurisdiction, such that the Queen’s Bench Division at that time could ignore any privative clause to the contrary.

FRENCH CJ:   So you say it is open to the Commission to make a mistake about the existence or non‑existence of a condition of its own power, and on that basis, beyond review, determine that it does not have power when the Parliament has conferred power on it?

MR HINTON:   My submission is that such a question is within the power of the Commission to decide.  Accordingly, in deciding it wrongly, you do not act in excess or for want.  My submission is, in further development of the answer, that you therefore fall within the third category of his Lordship Sir James Colville’s categories of error and it is not one committed in excess of or for want of jurisdiction.  On the construction point, we rely upon their Honours decision in the first PSA Case, and the distinction drawn between what amounts to “in excess of or for want of jurisdiction”, and a wrongful refusal. We do not walk away from the fact that a wrongful refusal is the jurisdictional error, but it is one here that is within power and it is one here that is protected by section 206.

CRENNAN J:   What is your answer though to the lack of symmetry point which was raised by Justice Gummow and was Chief Justice Bray’s point in relation to prohibition, certiorari and mandamus?

MR HINTON:   I rely upon Chief Justice Brennan and their Honours in the PSA Case.  There may be that lack of symmetry, but the language “for want or in excess” is inescapable.

FRENCH CJ:   The premise in PSA is that there is jurisdiction, but no exercise of it, but the determination of a jurisdictional fact does involve an exercise of jurisdiction, does it not?

MR HINTON:   It involves an embarkation upon the inquiry, yes, your Honour.

FRENCH CJ:   Well, involves an exercise of jurisdiction, does it not, otherwise we are just blowing into the air.

MR HINTON: Yes, I agree, your Honour. Again then, when you come to the Full Court of the Supreme Court of South Australia and you say this falls within section 206 because there is an act in excess of or for want of jurisdiction, the practical answer is that cannot be right because they embarked upon the inquiry and they exercised their power and you say the dispute is within power. So from the commonsense point of view, a point made by Justice Brennan, there was the power, there is the power. Nothing has happened in excess of it. What has happened is a wrongful refusal on the applicant’s case to exercise it.

FRENCH CJ:   The critical question is whether there is jurisdiction to err in the determination of jurisdictional fact.

MR HINTON:   Yes, your Honour.

FRENCH CJ:   If there is not, then you are in excess of jurisdiction if you make an error.  If there is not jurisdiction to err in the determination of jurisdictional fact, then you are in excess of jurisdiction if you err.

MR HINTON: Yes, your Honour. Our submission is, there is the power to err within and we refer in particular, or we rely upon section 26(c) and (d) which are the sections of the Fair Work Act that empower the Commission:

(c)jurisdiction to resolve industrial disputes; and

(d)jurisdiction to hear and determine any matter or thing arising from or relating to an industrial matter –

That necessarily, in our submission, confers a power to determine whether or not you have an industrial dispute and whether or not you have a matter or thing arising from or relating to an industrial matter.  That is the power that was exercised here with the result that the Commission and the Full Commission determined that there was no dispute and therefore nothing for it to further entertain.  I should also refer your Honours, in passing, to section 214 of the Act.  A specific power, a discretionary power, subsection (1) to:

refer a question of law arising in proceedings before the Commission to the Court for determination.

The necessary implication is if it is discretionary, then of course you can decide it for yourself. So questions of law and fact can be decided by the Commission in the exercise of its jurisdiction under section 26(c) and (d) and, in our submission, therefore it is within the power of the Commission to determine whether or not there was an industrial dispute.

GUMMOW J:   I do not see what you get out of section 214.

MR HINTON:   Simply the indication that there is a power to decide questions of law, your Honour.

GUMMOW J:   They would include the existence of a jurisdictional fact?

MR HINTON:   Yes, your Honour.  I take on board your Honour Justice Gummow’s observances to the care we must take in applying the first Public Service Association case.

GUMMOW J:   Particularly, if I may say so, if one looks at footnote (51) on page 145.  There is a statement there attached to footnote (51):

Certiorari is required to quash an order made ultra vires; mandamus issues as an adjunct to compel the making of an intra vires order.

That is not supported, I think, by what was said by Sir William Wade, pages 658 through to 660, I think.

MR HINTON:   Yes.

GUMMOW J:   It does not seem to give effect to Bott’s Case, apart from other things.

MR HINTON:   Sorry, your Honour?

GUMMOW J:   It does not seem to give effect to what was said in Bott’s Case. 

MR HINTON:   We have not got Bott’s Case in Court, but as I understand what your Honour Justice Hayne read to us, it too is not inconsistent with a characterisation of jurisdiction whereas those that are within the power to make and those that are not and that is the distinction that we seek to draw here on the construction point.  There is the power here to determine what is a dispute.

HAYNE J:   There is no doubt there is power to determine whether there is a dispute, but do they have power to determine it finally and conclusively, that is, do they have power to get it wrong?  Why would one conclude that they do?

MR HINTON: That is where we get to section 206, if your Honour pleases. It is the power to determine it as a sole Commissioner. There is a right of appeal and there it stops, save and unless you act in excess or for want of jurisdiction. I have put our construction argument – I will not take your Honours through the Public Service Association Case, but the distinction between the wrongful refusal to exercise jurisdiction and what amounts to an error in excess or for want of jurisdiction is drawn by each of their Honours and to be found at pages 142 and 143 of his Honour Justice Brennan’s judgment, 151 to 152 and 153 of Justice Deane’s judgment, 161 of the joint judgment of Justices Dawson and Gaudron and at page 164 of Justice McHugh’s judgment.

GUMMOW J:   Just looking at the bottom of 164 while you are there, the last complete sentence on 164:

whichever phrase is used . . . tribunal can be said to have acted in excess or in want of jurisdiction only when the relevant act was done in breach of the conditions which define the ambit of the powers and authorities of that court or tribunal.

This notion of breach seems to posit some idea of misfeasance rather than non‑feasance, I suppose. 

MR HINTON:   Yes, your Honour.

GUMMOW J:   Is that a sound – what is the rationale for that distinction?  It is attractive in some areas in tort.  I think it is here.

MR HINTON:   Attractive for my submission as well, your Honour. 

HAYNE J:   For the moment, Mr Solicitor, for the moment.

MR HINTON: If your Honour pleases, it is explainable because it comes on the back of his Honour Justice McHugh’s interpretation of the language further up in that paragraph of “excess of jurisdiction” or “want of jurisdiction”. So his Honour there is concerned to understand what those terms mean in the predecessor to section 206, and I should make that point. We were here concerned with the predecessor to section 206. So he is not dealing with any general proposition, he is more, with respect, attempting to explain the concepts in section 95 of the Industrial Conciliation and Arbitration Act.  That section appears in full at page – was reproduced in Justice Deane’s judgment at page 147.

HAYNE J:   But is it an available point of view to read “excess” or “want of jurisdiction” as a single composite phrase intended to encompass all forms of jurisdictional error?  Your argument depends upon cutting out each of the elements, treating those as somehow distinct.  Why should one not read “excess” or “want of jurisdiction” as a single composite phrase?

GUMMOW J: With the result, I might add, that section 206 does insulate errors on the face of the record which are non‑jurisdictional.

MR HINTON:   Yes.  The difficulty, or the shortcoming in reading it in a composite fashion is it deals with actions taken where there is no power.  It does not deal with non‑action where there is power.

HAYNE J:   But then this takes you into the misfeasance/non‑feasance distinction and one of the points that I think emerges from Bott is the difficulty of applying a distinction between misfeasance and non‑feasance in a case where there has been an attempt to perform the duty but it has miscarried.  It has miscarried because the decision‑maker has misunderstood the decision‑maker’s jurisdiction.  Now, is that properly put into the box marked “misfeasance” or the box marked “non‑feasance”?  I would have thought it was more comfortable in the first box, misfeasance, if you are going to box them up.  But does it not rather suggest that the boxes are not useful?

MR HINTON:   If I can answer that in this way.  It is not difficult to rationalise a refusal to exercise jurisdiction in terms of acting in excess.  You did not exercise jurisdiction – a wrongful refusal, I should say.  You wrongfully refused when you have a duty to act, therefore ‑ ‑ ‑

KIEFEL J:   But you do not need to add “wrongful” to it if you have a duty to act.  It is surplusage.  The problem is once you start talking in terms of torts is you are talking about wrongs when we are really talking about errors within the terms of a statute.

MR HINTON:   I take your Honour’s point but you can rationalise it in terms of you had no power not to decide according to your jurisdiction.  Therefore, in determining wrongly that you did not have the power, you exceeded your jurisdiction.

FRENCH CJ:   The problem of whether or not you have power to err on question of jurisdictional fact seems to be touched on, although not precisely in those terms, in a case with some analogies, Mutual Life and Citizens’ Assurance Company Limited v Attorney‑General for Queensland (1961) 106 CLR 48. There you have a case with an Industrial Court with exclusive jurisdiction but its jurisdiction depends on the existence of employer/employee relationships. The question is can you go off to the Supreme Court and get a declaration or something that there is or is not an employer/employee relationship. In the course of his judgment, Sir Owen Dixon, the Chief Justice, says at 56:

For where its jurisdiction depends on the fact of a party being or not being an employer or an employee it -

that is the Industrial Court -

cannot give itself jurisdiction by erroneously determining the question in the affirmative or deprive itself of jurisdiction which it possesses by erroneously determining the question in the negative.

That seems to be agreed with by most of the other Justices in that case.  Is that consistent with your propositions as to how we should treat the determination of jurisdictional fact in this case?

MR HINTON:   Yes, it is because what is occurring here is not a question of giving yourself jurisdiction, it is an ‑ ‑ ‑

FRENCH CJ:   No, it is erroneously depriving yourself.

MR HINTON:   But here there is the power to deprive and that is the distinction.  A distinction, I think, drawn by his Honour Justice Dixon in the Parisienne Basket Case 59 CLR 369. At page 389 commencing at about point 2 “In courts possessing” - and I appreciate we are speaking of courts but, in my submission, we are also speaking of a Commission here that has power to determine questions of law and fact. Point 2 “In courts” to the bottom of the page, I would invite your Honours to read that, and, indeed, from about point 6 commencing “How absurd” through to the bottom – almost the bottom of the page, point 8.

If your Honour the Chief Justice would pause a moment one further paragraph that I would alert your Honours to on this point is at page 391 at point 4, the paragraph commencing “It cannot be denied”.  We maintain, in our submission, within power to decide not – we do not contend that it is not a jurisdictional error to have wrongfully decided the question but what we do contend is to wrongfully refuse is not to act in excess or for want of jurisdiction. 

The question, in our submission then, if the Court is with us on that and what we have here is a wrongful refusal to exercise jurisdiction and not an action taken in excess or for want, turns to the validity of section 206 of the Fair Work Act.  Here, in our submission, the supervisory jurisdiction of the Supreme Court of South Australia and its defining characteristics does not extend to correction 4, errors within jurisdiction, correction 4, in this case, the wrongful refusal to exercise jurisdiction.

In our submission, this Court’s judgment in Kirk does not deal with the question of whether or not the content of the supervisory jurisdiction forms part of the defining characteristics of the Supreme Court of a State for the purposes of section 73(ii) includes a power to correct for the wrongful refusal.  The established doctrine ‑ ‑ ‑

GUMMOW J:   What you are really saying is it includes mandamus, it seems to me.

MR HINTON:   Yes, your Honour, we focus on certiorari, and I did not answer that, sorry.

GUMMOW J:   I know.

MR HINTON:   We focus on certiorari because there is an order in the Full Commission that needs quashed.  There was an application to remove that into the ‑ ‑ ‑

GUMMOW J:   Well, I think Bott would tell you there is nothing to quash.

KIEFEL J:   I think the point Sir William Wade makes at the passages to which Justice Brennan refers in the PSA Case at page 145 says that mandamus proceeds upon the basis that the decision is a nullity.

GUMMOW J:   That is the point, and there are numerous cases in this Court – the IPEC litigation, you will remember, years ago, about the two‑airline policy is an example where mandamus went to the Director‑General.  There was no question of certiorari.  I am sure there are numerous cases outside the industrial sphere where this has been the way in which courts proceeded.  So I think you have to face up to the fact that what you want to do is to limit the reasoning in Kirk in some way with respect to mandamus, which might be a big stone to push up a hill, I suspect.

HAYNE J:   That is a big ask in the last quarter of the year.

MR HINTON: If I am going to get the three votes, now is the time, your Honour. Our submission would be that where section 206(2) forbids a challenge on the ground of an excess or want of jurisdiction, it equally forbids the issue of mandamus by the Supreme Court ‑ ‑ ‑

FRENCH CJ:   It permits the challenge on the ground of excess ‑ ‑ ‑

MR HINTON:   Sorry, permits – to compel the exercise of jurisdiction where there has not been an excess or want of jurisdiction.  The argument in its essence is the same.  We rely again on the three categories in Willan’s Case which this Court accepted as the established doctrine identifying the defining characteristics of the supervisory jurisdiction of the Supreme Court of a State for the purposes of Chapter III.  Can I take your Honours to the Willian Case ‑ ‑ ‑

GUMMOW J:   No, it would be better to take us to what was said in Kirk about Willan, I would have thought.

MR HINTON:   No, if your Honour pleases.  Kirk to be found in 239 CLR ‑ ‑ ‑

GUMMOW J:   I say that because Willan’s Case is imperfectly reported in the first place.  They did not manage to set out what text of the section in the Victorian statute.

MR HINTON:   I take your Honour’s point.  Kirk then, the crucial passages for my purposes commence at paragraph 97 of the joint reasons through to 100.  Paragraph 97 identifies at Federation what was the understanding of the jurisdiction of the Supreme Courts which shared the same jurisdiction as the Court of Queen’s Bench.  By reference to the judgment of Sir James Colville, giving the judgment of the Privy Council in Willan, we have the accepted doctrine at the time of Federation.  The quotation from Willan includes the words, words of qualification as to the power of the Court of Queen’s Bench, qualification as to the extent to which it may act despite, or in spite of a privative clause and they are:

the ground either of a manifest defect of jurisdiction in the tribunal that made it, or of manifest fraud -

Those words, in the context of this judgment, have a particular meaning and that is what we rely upon in our written submissions.  It is not every jurisdictional error.  It is those that amount to ‑ ‑ ‑

GUMMOW J:   Are you talking ‑ ‑ ‑

MR HINTON:   Sorry, your Honour.

GUMMOW J:   Go on.

MR HINTON:   It is those that amount to a manifest defect of jurisdiction.  Of course, in Kirk we had a manifest defect of jurisdiction.  We had a case of decisions made in excess of jurisdiction.  There was no power to conduct that trial contrary to the rules of evidence that forbade calling an accused to give evidence against himself.  There was no power to return the conviction on an imperfectly pleaded charge, excess of jurisdiction.

GUMMOW J:   What does “manifest” mean?  I think when you are talking about certiorari it means apparent on the face of the record.

MR HINTON:   Yes, your Honour.

GUMMOW J:   That is all.

MR HINTON:   The three errors that his Honour ‑ ‑ ‑

GUMMOW J:   There is a big debate, of course, that goes on about what constitutes the record and how apparent it has to be on the face and so on and so forth.

MR HINTON:   Sir James Colville, as I have said ‑ ‑ ‑

GUMMOW J:   That is what manifest means.

MR HINTON:   Manifest means ‑ ‑ ‑

GUMMOW J:   It does not mean a really bad one. 

MR HINTON:   Yes, your Honour.  It includes those that appear on the face of the record.  It also includes collateral matters and that is where an inquiry, on the face of the record, is within power.  But when one embarks upon it an issue arises which there is a specific prohibition or in relation to which there is a specific prohibition that prevents the court embarking upon that inquiry.  His Honour, or his Lordship refers to the – I think he describes them as the rating cases where the Justices were not permitted to embark upon an inquiry as to whether or not a particular rate applied or a particular person owed a rate.  They were merely empowered to enforce a rate owed and I will take your Honours to that.

But just finishing with Kirk the established doctrine is identified as that to be drawn from Willan, which clearly includes excess or want of jurisdiction, in our submission but, as I will develop by reference to Willan itself, does not include wrongful refusal to exercise.  If the Court pleases at that point if I could take your Honours to the Colonial Bank of ‑ ‑ ‑

HAYNE J:   I rather think what was being said in Kirk was that accepted doctrine was that the State courts could grant certiorari in face of a privative clause.  I am not sure that what is said in Kirk is to be read as treating Willan as the last word on the subject of review. 

CRENNAN J:   You pick that up, do you not, from the last two sentences in paragraph 100 of Kirk, the penultimate one of which is relied on by those opposed to your view on the basis that a failure to exercise jurisdiction to which mandamus would apply is covered by that penultimate sentence?

MR HINTON:   Yes, your Honour.  But those last two sentences, with respect, could not be read without having regard to how the court arrives at determining the content of the defining characteristics of the supervisory jurisdiction.  When we look at the defining characteristics of the supervisory jurisdiction of the Supreme Court, to give that descriptor Supreme Court of a State contempt for the purposes of section 73(ii), we find ourselves looking historically to what was the position at or about the time of Federation.  We are drawn to Willan. 

So I take your Honour’s point, those two sentences at the bottom of paragraph 100 appear to be against us, but read against the historical reference to what is the content of the defining characteristic, we find ourselves looking at Willan’s Case and the judgment of his Lordship Sir James Colville and there his Honour carves out jurisdictional errors that the relevant court or tribunal has power to decide, those that are committed within jurisdiction.  The established doctrine is limited to manifest defects of jurisdiction or manifest fraud, in my submission. 

GUMMOW J:   Looking at the penultimate sentence in paragraph 99 of Kirk.

MR HINTON:   “To deprive”?

GUMMOW J:   At 581 in Kirk.

MR HINTON:   Yes, your Honour.

GUMMOW J:   You see there is a reference to Professor Jaffe’s “distorted positions”.

MR HINTON:   Yes, I see.  Yes, your Honour.

GUMMOW J:   That is echoed by what Justice Bray was saying, is it not, closer to home?

MR HINTON:   Closer to home, yes.  Differential treatment, yes.  Do we have these Alsatias or islands?  No, in my submission, because the supervisory jurisdiction is not necessarily about getting it right.  The supervisory jurisdiction ‑ ‑ ‑

GUMMOW J:   Depends what the “it” is.

MR HINTON:   The exercise of power.

GUMMOW J:   No.  The decision to enter upon the exercise or to refuse to enter upon the exercise of power, that is the relevant “it”.

MR HINTON:   In my submission, it is sufficient for the relevant “it” to be confining inferior courts and tribunals to acting within the limits of their power. 

GUMMOW J:   That, what I put to you, reflects a constitutional understanding of the relations between the courts and the legislature.  The problem is when the legislature hives these matters off into some insulated Alsatia, that is the problem, and whereby people are denied what might their access to this particular Tribunal and nothing can be done about it.

MR HINTON:   Not if it acts within its power.

GUMMOW J:   Without going back to the Parliament and getting it to change the statute.

MR HINTON:   Yes, your Honour.  It is sufficient for the purposes of the supervisory jurisdiction to make sure they act within power.  We do not get then – if you get a refusal to exercise jurisdiction, you do not get the development of an island of the common law to which this Court has no access because all you have is a refusal to exercise jurisdiction.  It is in actions taken in excess of limits on power that this Court cannot ultimately reach that you get those islands that are offensive.

HAYNE J:   But you do have the island of power because you have the Tribunal construing the legislative expression, in this case “industrial dispute”, in an idiosyncratic way that cannot be corrected through the judicial system, but one of the core functions of the courts to construe statutes and determine their proper meaning is somehow isolated from classic island.

MR HINTON:   You do get a carve‑out.  You get an island, that cannot be denied.  You do not get a precedent.

HAYNE J:   No, you get denial of access to that body.

MR HINTON:   Denial of access, granted, but you do not get, as was the case with the Industrial Court of New South Wales, you do not get a body of precedent that has repeated itself.  This is not the Commission.  This is not a court.  There is no requirement then to follow earlier decisions of the Commission or, indeed, decisions of the Full Commission and the nature of the beast and the disputes that it is required to resolve, emphasise that that cannot be the case.  So you do get the possibility that an employer or an employer’s association does not get the benefit of correction where there is a wrongful refusal, but you do not get a whole body of law built up.  You do not get a class of employers or employees who are denied access.

FRENCH CJ:   You say, to pick up the language of Sir Owen Dixon, the passage that I read to you, that the Commission has the power to erroneously deprive itself of jurisdiction.

MR HINTON:   Yes, your Honour.

FRENCH CJ:   Now, that is a matter of statutory construction?

MR HINTON:   Yes, your Honour.

FRENCH CJ:   What is the source of it?  Is the source of it 206(1)?  If so, it would be a little circular, would it not?

MR HINTON:   The source of it is the necessary power to decide the disputes that form part of the jurisdiction, section 26, and that is the primary source.

FRENCH CJ:   That is the source of the power to erroneously deprive itself of jurisdiction.

MR HINTON:   That is the source of the power to decide the issues that come before it purporting to be that dispute, yes, your Honour.  If I could take your Honours to Willan’s Case – time is running out, I am ever hopeful for a few more touches, your Honour.

GUMMOW J:   Just before you do that, you seem to have an ally in Victoria.  Is it really an ally in Victoria?  They seem to be putting something different to you, namely it is the duty to exercise ‑ ‑ ‑

MR HINTON:   They put it differently to us.  I do not adopt the submission that there is no duty.

GUMMOW J:   No, I thought not.

MR HINTON:   There is a duty.

GUMMOW J:   It seems a rather uneasy coalition.

MR HINTON:   If the Court pleases.  Now, if I could take your Honours to The Colonial Bank of Australasia v Willan (1874) LR 5PC 417, an appeal to the Privy Council from the Supreme Court of Victoria against an order of the Supreme Court which quashed an order of the Court of Mines.  That order wound up the Golden Gate Mining Company.  In the Supreme Court, it had been contended that certiorari should lie because the company was not indebted.  There was a bankruptcy jurisdiction given to the Court of Mines, and this particular mining company was not indebted to the bank at all, as the judge of the Court of Mines concluded they were, and the winding‑up order was obtained by virtue of fraud, the judge having been told a position that was erroneous. 

The Supreme Court quashed the winding‑up order, primarily because there was no real notice, no effective period of notice given to the shareholders of the mining company, but also because the creditors did not disclose all relevant facts.  As I have indicated to your Honours, the judgment of the Privy Council was given by Sir James Colville.  At page 440 of the report, his Lordship accepts at about point 3 that:

the Supreme Court has a general power to issue the writ . . . co‑extensive with the like power of the Court of Queen’s Bench -

He gives in summary his conclusions at the bottom of page 440.  The quotation from his Lordship’s judgment that features in Kirk at paragraph 97 is to be found at page 442 commencing at point 2 to point 5.  The following paragraph consisting of those two sentences is, for my purposes, important – that is, the reference to R v The Board of Works of St. Olave’s, which I will come to.

With respect to what amounts to want of jurisdiction, at the bottom of page 442 his Lordship turns to that question.  Over onto page 443 we have him identify the three classes of error – or begin to identify the three classes of error.  The first concerns extrinsic matters, those relating to the character and constitution of the Tribunal or its subject matter of inquiry or essential preliminaries to the inquiry.  One would include there, of course, matters of bias and that explains the Sankey v Whitlam judgment.  We then have, at about point 4 through to point 6, errors within jurisdiction and this picks up and answers questions put to me by your Honour the Chief Justice:

But an objection that the Judge has erroneously found a fact which, though essential to the validity of his order, he was competent to try, assumes that, having general jurisdiction over the subject-matter, he properly entered upon the inquiry, but miscarried in the course of it.

That is what occurred here.  You do have the power to decide.  It is asserted that you made an error.  His Honour then refers to the authorities of R v Bolton and again St Olave’s Case.  The third class of error is identified on page 444 at about point 3 commencing “There is a third class” and concluding at about point 9.  Here we are talking about a specific statutory prohibition preventing the particular court or tribunal from determining a matter.  That is not this case. 

GUMMOW J:   At page 445 in the third paragraph the Privy Council says:

The order . . . is, on the face of it, strictly regular.

MR HINTON:   Yes, your Honour.

GUMMOW J:   So they are saying there is no error of any description on the face of the record.

MR HINTON:   Yes, your Honour.  But they have also received affidavits as to whether or not there was an error committed in the course of the inquiry because, of course, that third class is not one that can be determined necessarily on the face of the record.

FRENCH CJ:   You are not concerned in this case, of course, to define “power” by reference to the scope of the remedy.  We are looking to the source of the power and what the statute allows the Commission to do.

MR HINTON:   Agreed, but when it comes to the defining characteristics of the Supreme Court of South Australia, we come back to the established doctrine and that is why I am taking your Honours to this case, the disposition of this matter and then with respect to the want of jurisdiction we find at page 446 and his Lordship commences with a discussion of what appears on the face of the order.  It is about the first full sentence in commencing “The order”.  He also refers, toward the bottom of that paragraph, to the fact that it was not the case of there being “no evidence to support this finding”.  We have then the first full paragraph commencing at about point 4 an error made within jurisdiction and it is not one ‑ ‑ ‑

GUMMOW J:   The evidence they had was designed to support a fraud allegation, was it not?

MR HINTON:   Yes, your Honour.

GUMMOW J:   That appears from the first paragraph on 448:

after a full consideration of the case as disclosed in the affidavits, and of the arguments addressed to them, are not satisfied that there is any ground for imputing fraud ‑ ‑ ‑

MR HINTON:   That is true.  What his Lordship has done is separate out the two components.  Because there was a provision taking certiorari away, the only power to quash was if you could characterise the error as a manifest defect, want of jurisdiction or manifest fraud.  So up to page 446 at about point 7 his Lordship is concerned with the question of manifest defect of jurisdiction, want of jurisdiction. 

From there on you will see about point 7 of page 446 he turns to consider the question of fraud.  His Lordship considers the relevance of the evidence to both matters.  So we are not purely concerned with just what appears in the face of the order.  What we have ultimately is a decision that the error was within jurisdiction and so certiorari would not lie.  We had a decision that, with respect to the manifest fraud, it was not manifest and so certiorari would not lie, my essential point being the established doctrine was such that it was not the case that the supervisory jurisdiction required that the prerogative writs, if I can put it that way, extend to all class of error.  The carve out was permissible.

In my submission, here we fall into the carve‑out.  That is supported, when one has regard to the authorities of R v The Board of Works for the district of St Olave’s, Southwark – I will not take your Honours to it – and indeed, R v Bolton.  There is again the distinction between errors within jurisdiction and those that go to jurisdiction.  In my submission, we fall within the category of an error within jurisdiction.

Accordingly, in my submission, the scope of the supervisory jurisdiction does not extend to correcting an inferior court or tribunal for the wrongful refusal to exercise jurisdiction. Section 206 then does not impermissibly reduce the supervisory jurisdiction of the Supreme Court contrary to section 73(ii). It does not offend Kirk.  Kirk and the first PSA Case can comfortably be reconciled.  “Comfortably” might be a poor choice of words but they can be reconciled ‑ ‑ ‑

FRENCH CJ:   Just by way of aside, you digressed along this line of argument relating to the, if you like, position of Supreme Courts at Federation and their essential characteristics to refer me to that passage at 443 about:

the Judge has erroneously found a fact which, though essential to the validity of his order, he was competent to try –

Now, I think you tied that back to the questions I had been putting to you earlier, but I repeat the proposition I put to you that that begs the question, what is the power of the decision‑maker?  This is outside the framework of – the main thrust of your argument on Willan, but in the end we have to go back to the statute to look at the power of the decision‑maker.

MR HINTON:   Yes, your Honour, and we have.  We have the grant of jurisdiction in section 26 ‑ ‑ ‑

FRENCH CJ:   Yes, I appreciate that, yes. 

MR HINTON:   We have the facultative provisions that my learned friend ‑ ‑ ‑

FRENCH CJ:   The passage you refer to – all I put to you is the passage you referred me to begs that question.

MR HINTON:   Yes, your Honour, and your Honour is quite right.  We have to go back and look at the power of the decision, yes.  I put my submissions, with respect, to that.  Can I turn then finally to deal with the submission filed yesterday, the question as to whether or not special leave should be granted in this case, the substantive argument aside?  Can I put it this way? 

The first dispute arises from a statement made by the Treasurer in Parliament as part of the budget speech of 2010/2011.  In the budget speech for 2011/2012 the Treasurer made clear that for the lifetime of this government, March 2014, it would not revisit the no‑forced redundancy policy.  The first dispute relates to a complaint regarding the Treasurer’s suggestion that if the public service was not reduced sufficiently by targeted voluntary separation packages then the government would revisit the no‑forced redundancy policy.  That decision was reversed in June of this year. 

The relief sought, that is to be found in the letter of the applicant forming annexure 1 to the supplementary submissions of the Attorney‑General for South Australia.  The relief sought was a recommendation from the Commission and your Honours will see that at page 3 of the letter, annexure 1, page 3 bottom of the page - sorry, top of page 4 over the page, top of page 4 of that letter.  The relief sought was that a recommendation be made:

that the Government withdraw its threatened breach of the Enterprise Agreement –

That, in effect, although not by virtue of a recommendation, but that has occurred.  The first dispute then no longer exists.  It has evaporated.  The second dispute had two components.  Part A concerned changes to annual leave loading.  By virtue of the Statutes Amendment (Budget 2010) Act 2010 a public servant’s annual leave loading was abolished and in its place was given an additional two days leave per year. That is to be found in the Statutes Amendment (Budget 2010) Act 2010, again annexure 2 to the supplementary submissions, sections 60, 61 and 63, the crucial section being section 63 in Schedule 1A. Clause 2 of Schedule 1A affects the amendments to annual leave loading. That Act was ‑ ‑ ‑

HEYDON J:   Just interrupting for one moment then.  One‑sixth of a day of recreation leave for each month is two days per annum.  That is your point?

MR HINTON:   Yes, your Honour.  The crucial point being sections 60, 61 and 63 of that Act were repealed by the Statutes Amendment (Budget 2011) Act 2011, which your Honours were also given, following the 2010 Act, the relevant section of the 2011 Act being on page 8, bottom left‑hand corner, Part 4, sections 16 and 17, we see the repeal. So the dispute with respect to annual leave loading has fallen away. All we have left is the alterations to long service leave brought about by section 64 of the 2010 Act. The effect of section 64(1) was for a public servant who has completed 15 years of service where before they were entitled to 15 days – sorry section 62 – where before they were entitled to 15 calendar days for each completed year of effective service by virtue of this statute, it was reduced to nine calendar days of effective service. The relief that was sought on this dispute, annexure 1, the second letter of the Public Service Association, two‑page letter, was:

a recommendation that the Government not proceed with its proposed legislation to reduce recreation leave loading and long service leave entitlements –

So when my learned friend says to the Court that these disputes were put into the Commission and it was left to the Commission to use whatever, and it full array of powers to resolve them, with respect, it was not that way.  What was sought was a specific form of relief and the Commissioner’s mind was directed to a specific outcome that was requested; hence, we get the focus of the appeal in the Full Commission on these two questions.  No one ever argued until now that this dispute is broader, that there is something else the Commission could have done, and we still have not had it articulated as to exactly what else it is that the Commission could have done.

HEYDON J:   There is one thing I do not quite understand, Mr Solicitor.  In paragraph 8 of your supplementary written submissions, you point out that:

The 2011 Act did not repeal the legislative amendment reducing long service leave entitlements brought about by item 62 ‑ ‑ ‑

MR HINTON:   Yes, your Honour.

HEYDON J:   But then you say –

the enactment of item 62 of the 2010 Act has altered the factual substratum of the dispute –

but does it nullify the existence of any dispute at all?

MR HINTON:   That is the question I am coming to, your Honour.  To the extent that what has been agitated is the relief sought in the Public Service Association’s letter – the second letter, part of annexure 2 – that has evaporated, that factual substratum.  We seek a recommendation that the government not proceed with its proposed legislation.  It has evaporated.  What is put to you now is that the Commission has a very broad power to do what is ever necessary to resolve a dispute.  But what was the Commission ever asked to do?  No one has ever identified it, and it has not been identified for your Honours.

CRENNAN J:   Do you make any point about the distinction between proposed legislation and legislation which ‑ ‑ ‑

MR HINTON:   Just a point of time, your Honour.  What has happened is that at that time, we had a bill.  Now we have an Act.  But my essential point in answer to your Honour Justice Heydon is that it is hypothetical now, because if your Honours allow the application for special leave and allow the appeal, the matter goes back to the Supreme Court.  The Supreme Court will still not issue mandamus because what is the dispute, or an order in the nature of mandamus ‑ ‑ ‑

GUMMOW J:   The Full Court can decide that, can it not?

MR HINTON:   It can.  I was hoping to persuade your Honours there was no utility, and therefore your Honours should not consider the matter.

GUMMOW J:   I suspect your opponents have had to stand up and furiously controvert some of what you have been saying.

MR HINTON: I am sure he will, your Honour, and I look forward to him pointing to where in the papers the Commissioner was asked to do anything other than appears in that letter, where the Full Commission then – because it could have changed the whole question of jurisdiction. If you are asked for some kind of offset from your employer then you had the right employer there. You had the Chief Executive. If the dispute was, “Well, now you have changed” for those that had done 15 years, their long service leave entitlements, they should get something else, then you may well have had an industrial matter and an industrial dispute. But no one was ever asked to consider that, and yet now, in effect, that is the factual substratum upon which – the only factual substratum that this matter remains live on, and it is still not articulated. In my submission, for those reasons, the matter is hypothetical, or alternatively, this is a poor vehicle for this Court to consider the larger question of the validity of section 206. If the Court pleases, those are my submissions.

FRENCH CJ:   Thank you, Mr Solicitor.

MR GAGELER:   Your Honours, the answer to the question asked by your Honour the Chief Justice - does the Commission have jurisdiction to determine its own jurisdiction - is provided in principle by a line of authority that predates Willan, and that has been applied many times in this Court in the industrial context, and the answer is no.  The Commission has a duty or a responsibility that is preliminary or collateral to the exercise of the jurisdiction that is conferred by section 26 of the Act to form a view about whether that jurisdiction is properly invoked.  The view that it forms is either right or wrong and, if wrong, can be corrected by prerogative writ if the case is in State jurisdiction or constitutional writ if the matter is in this Court, the nature of the particular writ that is issued depending on the nature of the error.

Your Honours have been provided with the most useful authority that we could find in this Court on that topic.  It is Blakeley 82 CLR 54. If your Honours turn to page 75, at the end of a long and very useful distillation of the case law by Chief Justice Latham your Honours will see first from the judgment of Justice Coleridge in Bunbury v Fuller, a case decided in 1853, a statement of the position in respect of the jurisdiction of the Court of Queen’s Bench.  Following that, your Honours will see very usefully in one or two sentences the distillation of principle by Chief Justice Latham which, in our submission, is directly applicable here.  His Honour says:

This long-standing decision is precisely in point.  If an authority with limited jurisdiction has no power to make a conclusive decision as to the existence or non-existence of a collateral matter upon which jurisdiction depends, and makes a wrong preliminary decision either way, the mistake will be corrected by mandamus or prohibition – by mandamus if he wrongly decides that he has no jurisdiction, by prohibition if he wrongly decides that he has jurisdiction.

The effect of the submissions that are put to your Honours, at least by the second respondent, is that the jurisdiction of the Court of Queen’s Bench as inherited by the Supreme Court of South Australia is in some way lopsided.  There are some sorts of errors which, although they go to jurisdiction, cannot be corrected even though other sorts of errors going to jurisdiction can be corrected.  Your Honours, the holding in Kirk as applied in Totani is reflected, in our submission, in the statement of your Honour the Chief Justice in Totani 242 CLR 1 at paragraph 26 where, in the second last sentence your Honour said:

State legislative power does not extend to depriving a State Supreme Court of its supervisory jurisdiction in respect of jurisdictional error by the executive government of the State, its Ministers of authorities.

There is nothing, in our respectful submission, in the reasoning in Kirk which lends support to the notion that there is a distinction to be drawn between kinds of jurisdictional error to the effect that a wrongful assumption of jurisdiction is remediable by certiorari or prohibition within the constitutionally entrenched jurisdiction, that a wrongful refusal of jurisdiction remediable otherwise by mandamus is outside the constitutionally entrenched jurisdiction.

Your Honours were taken to paragraph 97 of Kirk.  We make two points about the history that is there recorded.  Understandably, the focus in Kirk was on the writ of certiorari and, of course, that was the writ that was in issue in that case, but the first point to note about paragraph 97 is the reference to the Supreme Courts having the jurisdiction that the Court of Queen’s Bench had in England.  That jurisdiction, of course, included jurisdiction to grant mandamus as much as it included jurisdiction to grant certiorari or prohibition.  Our learned friend for the second respondent, then places great emphasis on the undoubted fact that Willan, which was then referred to, was a case about certiorari.  True that is.  Willan itself says nothing about mandamus, but the point about mandamus that distinguishes it from certiorari and makes the holding in Willan at least of equal strength when applied to mandamus, is that mandamus unlike certiorari was only ever available for jurisdictional error.  That is the point made in Ex Parte Bott. 

The cases to that effect, including Bott, are usefully collected in Bhardwa 209 CLR 597 in footnote (51) that appears at paragraph 51 and although it is impossible to be sure of the negative, we have found no case before or after Federation where a privative clause has been held to prevent the grant of mandamus in the face of jurisdictional error, and there are certainly cases. We have included in our outline a case decided by the Full Court of this Court in 1989 where a privative clause in a Commonwealth statute has not prevented mandamus from issuing for a failure to exercise jurisdiction. Your Honours, I do not think I need to address orally the detail of the points we have collected in paragraph 2 of our outline. They are self‑explanatory and they are effectively a parry to a thrust that is yet to be made, if the Court pleases.

FRENCH CJ:   Thank you, Mr Solicitor.

MR McLEISH:   If the Court pleases.  In my submission, what this case first involves is a question of interpretation followed perhaps by a question of validity.  In relation to the ‑ ‑ ‑

HEYDON J:   If it is a case between a trade union and South Australia, is it appropriate for an intervener to be raising a matter of controversy which they do not wish to debate amongst themselves, namely, the correct construction of the Fair Work Act?

MR McLEISH: Your Honour, in our submission, it is not possible to address the constitutional issue without beginning with the question of construction. In other words, the proper meaning of section 206 informs, I would submit, the constitutional issue itself. As far as the question of validity goes, I will come to that at the end, but, as your Honour Justice Gummow pointed out, we do adopt a different position in relation to the statute from our learned friends for South Australia, as your Honour Justice Heydon as just noted.

In particular, in submissions of the Attorney for Victoria, the alleged error is not necessarily one of a jurisdictional nature and the reason we make that submission is that a preliminary question arises as to whether or not the body in question was under any duty to make the decision that it did and it is submitted the questions of jurisdiction are apt to cloud the issue in that there may be merely a power without any duty to exercise it and in that context the word “jurisdiction”, it is submitted, is apt to mislead.  It is apt to suggest that there is in fact a responsibility to enter into deliberations on a matter that is brought before the body.  If that is not the case and there is a mere power without being coupled with any duty to exercise it, then the position radically alters, it is submitted.  At both stages that is the question of interpretation and validity. 

The critical consideration is the fact that identifying the operation of a privative clause involves the process of reconciliation.  That is familiar from the cases.  We have listed them in our oral hand-up document under paragraph 1 and also in the written submissions and I will not take your Honours back to those cases.  What that process of reconciliation involves is a reconciliation between provisions seeming to limit the power of the body in question, on the one hand, and the privative clause on the other which appears to widen the scope for it to exercise power free of limits. 

Ultimately, what is required involves both identifying the extent of the limits on power and the scope of review simultaneously and the clearest statement of that dual nature of the undertaking appears in the Darling Casino Case 191 CLR 602 in the judgment of your Honour Justice Gummow and Justice Gaudron at pages 630 to 631. I am relying there on point 8 of page 630 and over the page where the judgment says:

In that situation, it treats the refusal or failure as if there were no obligation to exercise the power in question.  And by withdrawing the jurisdiction of the courts to review, it operates to reduce the scope of the decision‑maker’s duty. 

FRENCH CJ: It depends on the text, I suppose, of the privative clause as to how precisely it operates and in this case section 206(2) in a sense begs the question of power, does it not?

MR HINTON:   It, we would submit, perhaps slightly differently addresses the question of power by indicating that which the Commission is not entitled to decide conclusively.  It is not entitled to act in excess or want of jurisdiction.

FRENCH CJ:   It leaves open the question what is the scope of the jurisdiction.

MR HINTON:   It does do that, your Honour, but it also indicates, we submit, and subject of course to contrary – the task of reconciliation that there is no duty on the Commission to embark upon a matter before it.  We rely for that submission also on section 168 which is the provision your Honours have been taken to which expressly permits the Commission to desist from hearing a matter if it determines that to do so is in the public interest.  That is an extremely wide power, in our submission, and the width of it is itself inconsistent with an underlying duty on the part of the Commission to enter into the determination of a dispute.

The statute itself is consistent, it is submitted, with a reading of section 206 which denies the existence of a duty on the part of the Commission. As far as the scope and purpose of the Act is concerned here we draw in aid what Justice Deane said in the PSA Case which we have set out in our written submissions at paragraph 18 - this is Justice Deane at pages 147 and 148 of the PSA Case – the special considerations which his Honour drew attention to about the nature of industrial tribunals and the context towards the bottom of the quote:

where prompt action – sometimes at the tribunal’s own initiative – to prevent and resolve disputes is necessary in the public interest, there is much to be said for the view that such specialist industrial tribunals should be empowered to determine promptly and with finality the questions involved in the actual and potential industrial disputes which they are called upon to resolve.  The delays and expense of proceedings in the ordinary courts of this country serve to reinforce such a policy and its rationale.

We rely on that for the proposition that it is consistent with the purpose of the Act for Parliament to have decided that the Commission is entitled to go wrong and entitled to misconstrue the limits of its powers because it is not under any duty to exercise those powers.  In the present case what happened in the Commission can be characterised in either of two ways, it is submitted - either there was a determination on the part of the Full Commission to dismiss the appeal and that is certainly what formally appears in the application book at page 14.  The order of the Commission is that the appeal is dismissed.

That is an exercise of the power in the Full Commission found in section 208 of the Act which I do not believe the Court has been taken to.  Section 208 sets out the procedure on an appeal to the Full Commission and enumerates the powers of the Full Commission on the hearing of an appeal.  Section 208(3)(g) enables the Full Commission to “dismiss the appeal or any part of the appeal”.  On one view of what happened in this case the Full Commission exercised its jurisdiction to hear the appeal and dismiss it and whether or not it was correct in doing so, whatever else may be said of it, it acted within jurisdiction in so doing.  The relief sought is against that decision of the Full Commission.

The second way of characterising what happened in this case is that there was a refusal to determine the matter, refusal to exercise jurisdiction and it is in that context that the constitutional issue arises.  At this point we embrace what was submitted by the Solicitor for South Australia as to the application of Kirk and what is in our written submissions at paragraphs 41 to 48.  But in short Kirk was a case about lack of jurisdiction and Willan itself was likewise a case.  The reliance which was placed on Willan in Kirk was to identify limits on the ability of Parliament to derogate from the essential characteristic of the court to grant prerogative relief.

Willan says nothing about any limit on the Parliament to deny resort to mandamus and it would be surprising if it did so, in our submission, because it is accepted that Parliament can deny the existence of a duty to exercise a statutory power.  Mandamus depends for its operation on the existence of such a duty and consistently with what I have submitted about the dual nature of the process of reconciliation, it is submitted that to deny the availability of mandamus is simply another way of denying the existence of a duty, something which statutes have always been able to achieve.

HAYNE J:   Is that a proposition which reduced to its essentials is that the construction of the Act you advance leads to the conclusion you assert, but if the construction you assert is not adopted where does that leave your argument?

MR McLEISH:   Your Honour, it may depend what – to state the obvious – what construction is adopted. 

HAYNE J:   But does not this point quite squarely, Mr Solicitor, to the point which Justice Heydon raised, if you are here to advance a particular construction of the statute and your argument depends wholly on the construction of the statute, a statute not of the polity that you represent, I wonder what the point of the intervention is?

MR McLEISH:   Well, your Honour, we do not seek to revisit what my learned friend, the Solicitor for South Australia, put.  I am content to rely on

his submissions if the construction is not as we submit, but it is nonetheless ‑ ‑ ‑

HAYNE J:   But your argument is because Parliament could give power to decide, not coupled with duty to decide, there is what - a middle ground where Parliament by privative clause can achieve the same result, can achieve a like result or what?

MR McLEISH:   The same result, your Honour, and that is the submission ‑ ‑ ‑

HAYNE J:   That is, it seems to me, if I may say so, an argument about construction and nothing but construction and it is not an argument founded, I think, at least not yet apparent to me, how it is founded at all in constitutional principle, which I thought you were here to intervene on.

MR McLEISH:   Well, your Honour, the submission is that to read the Court’s judgment in Kirk as extending to a situation in which the legislatures are precluded from denying mandamus is at the same time to deny the ability of the legislatures to confer a power uncoupled with a duty.  Now, the point of the submission is to urge against that course because of the anomalous outcomes that would lead to.  Now, granted if there is a duty, the position is different, but it is that anomalous outcome that we are here to submit the Court should avoid.  Those are the submissions, if the Court pleases.

FRENCH CJ:   Thank you.  Mr Solicitor.

MR SOFRONOFF:   May it please the Court, we adopt the submissions of our learned friend, the Solicitor‑General for Victoria.

FRENCH CJ:   Thank you.

MR SEALY: Likewise, your Honours, the Attorney‑General of Tasmania adopts the submissions made on behalf of the Attorney‑General of Victoria but in addition to the provisions relied upon by my learned friend, we point also to the provisions of section 199 of the Fair Work Act as being yet another indication that the Commission is under no duty to act. Section 199 provides that:

If the parties to an industrial dispute are bound by an award or an enterprise agreement that provides procedures for preventing or settling industrial disputes between them, the Commission must, in considering whether, when or how it will exercise its powers in relation to the industrial dispute have regard to –

matters set out in subparagraph ‑ ‑ ‑

GUMMOW J:   Yes, but that posits that the Commission is seized of an industrial dispute.

MR SEALY:   I beg your pardon, your Honour?

GUMMOW J: Section 199 assumes the Commission has crossed the threshold.

MR SEALY:  Yes, your Honour.  Nonetheless, as I say, we rely upon that provision as yet another indication of no duty to exercise jurisdiction.  We also to that extent adopt the submissions made or that we anticipate will be made by the Attorney‑General of Western Australia.  May it please.

FRENCH CJ:   Thank you.  Solicitor for Western Australia.

MR MITCHELL:   If it please the Court, we adopt our written submissions and just make one additional point in relation to the application of the principle in Kirk to duties which may be created by State Parliaments, that is that that principle may need to take into account the capacity of State Parliaments to impose duties of imperfect obligation, that is, duties which are not enforceable by curial process but which are statutory commands which are given effect to by other means.  One, a common example, related to this case may be provisions for public sector disciplinary process where a disciplinary tribunal or official is given authority to determine whether there has been a breach of a public sector standard.  One finds that process set out, for example, in the Public Sector Management Act 1994 (WA). Another example may be where ‑ ‑ ‑

GUMMOW J:   Also considered in White’s Case, is it not, in this Court?

MR MITCHELL:   Yes.

GUMMOW J:   Those internal public service disciplinary matters do not generate any matter in the Commonwealth sphere.

MR MITCHELL:   Another example may be that reflected in the Mutual Life v Attorney General for Queensland decision 106 CLR 48 where industrial obligations may be enforced only by proceedings in an Industrial Commission. One may also have statements of internal obligation such as obligations to create corporate strategies, statements of corporate intent and the like, which are statutory commands but which would not ordinarily give rise to a writ of mandamus.

So it may not be a case of either there is a duty or no duty, one may need to inquire into the character of the duty.  There is no right - or if there is no remedy there may be no right, there may be no right to enforce the duty but the capacity, we say, of State Parliaments to make statutory commands of that qualified character needs to be brought into account when considering the extent to which a Supreme Court’s jurisdiction to grant mandamus to enforce certain kinds of duties may be entrenched by the constitutional provision.  If it please the Court, those are our submissions.

FRENCH CJ:   Thank you, Mr Solicitor.  Mr Heywood‑Smith.

MR HEYWOOD-SMITH:   Can I respond to the matter of the special leave?  With respect to my learned friend it is not the case that Public Service Association is advancing for the first time today the proposition that the Commission has under section 155 wide powers to settle a dispute in any way that it wishes.

The Supreme Court was addressed on this issue because it was advanced that the judicial review taken to the Supreme Court being discretionary, the Supreme Court would have regard to the fact that legislation had been enacted and the Commission would have very limited powers or role to do anything about it, but the Chief Justice, at application book page 36, said this in paragraph 26, refers to the second dispute and then in the fourth line:

Legislation to give effect to the proposed changes to the terms and conditions of employment of Public Sector employees has been enacted . . . s 62 relating to long service leave entitlements and s 63 relating to leave loading.  The Budget Act has been assented to.  Section 62 will come into operation on 1 July 2011:  s 2(2).  Section 63 will come into force on a date to be fixed by proclamation:  S 2(1).  It does not follow from this that there is nothing that the Commission could do if this matter gives rise to an industrial dispute.  However, its scope for effective action is significantly and perhaps decisively limited by the circumstance that the proposed changes have been enacted.

The submission that was put to the Full Court was that in the settlement of an industrial dispute, whilst the Public Service Association might be forced to accept the reduction in leave loading it could seek a quid pro quo in some other term and condition in the enterprise agreement and the Chief Justice was simply acknowledging that proposition. 

Now, coming back to the more recent events, it is the case that of the three areas of dispute the leave loading issue has been resolved by the government repealing that legislation.  I would not wish to concede that the

no‑forced redundancy issue is necessarily resolved because what has been announced is that the government for the life of this Parliament would not seek to change it and it is submitted that the life of this Parliament will extend beyond the determination of the enterprise agreement.  However, section 83(4) provides that an enterprise agreement continues on after its nominated determination date until replaced, and so what, theoretically possible. 

So far as long service leave is concerned there is still a dispute.  The dispute at the time was well, you have committed in the enterprise agreement to not reducing entitlements, including long service leave entitlements.  You, the government, have unilaterally sought to amend the terms and conditions of employment and have effectively done so.  Now, the Act has been passed and has come into effect, but we, the Public Service Association, have a dispute with you about that. 

Now, that dispute can be resolved either by the parties agreeing or by the Commission making a determination, which the parties are bound by.  Neither of those things has happened.  So far as this Court is concerned that third dispute is alive and founds the basis for this application, in our submission.

BELL J:   I think the Solicitor-General made one further and distinct point in terms of why in his submission it was not a suitable vehicle for the grant of special leave to do with the way the issues had been framed initially before the Commission, but if one were concerned with relief in the nature of a quid pro quo, there may not have ever been an issue about the parties.

MR HEYWOOD-SMITH:   Quite so, but, with respect, of course, Commissioner McMahon never reached the stage of considering how he might deal with the dispute and at that stage, of course, the parties could advance any number of possible ways, and the mere fact that a party takes or gives notice of a dispute and in that notice nominates one potential outcome of many does not tie either the Commission, or indeed, it is not a matter that the Supreme Court, we say, would be concerned about.  That is a matter for the Commission in the future.  That is what we would say about the special leave matter.  The applicant relies upon its written reply.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Heywood‑Smith.  The Court will reserve its decision.  The Court adjourns until 10.15 tomorrow morning.

AT 12.34 PM THE MATTER WAS ADJOURNED